Citation Nr: 1801238 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 16-25 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a right wrist condition. 2. Entitlement to service connection for a bilateral foot condition. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1953 to June 1955 in the United States Army. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the San Diego, California Regional Office (RO). Subsequently, jurisdiction has been transferred to the Oakland, California RO. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). The appeal for the issues of service connection for a right wrist condition and for a bilateral foot condition is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, the Veteran's claim regarding entitlement service connection for a right wrist condition and for a bilateral foot condition must be REMANDED for further development. Right wrist condition The Veteran contends that his current right wrist disability is the result of an injury he sustained during service. In his November 2014 Notice of Disagreement, the Veteran endorsed that while he was stationed in South Korea, he broke his right wrist after falling while pulling heavy logs and railroad ties up a hill during freezing conditions. He sought treatment at Camp Casey military hospital where he reported that his arm was placed in a cast after x-ray results revealed a fracture to his right wrist region. The Veteran endorsed that he has suffered pain, numbness, and weakness in his grip since the injury; additionally, he reported a decreased range of motion in his right wrist. Bilateral foot condition The Veteran contends that his current bilateral foot disability is the result of cold exposure that he experienced during service. In his November 2014 Notice of Disagreement, the Veteran endorsed that while he was stationed in South Korea, he was exposed to "extreme ice cold weather." The Veteran reported suffering severe pain in both of his feet since being exposed to extreme cold in active duty. The VA attempted to obtain the Veteran's service treatment and personnel records; however, it was determined that his records were unavailable due to the 1973 fire at the National Personnel Records Center (NPRC). See January 2014 DPRIS Response. The NPRC was able to reconstruct a limited number of the Veteran's medical and personnel records and added them to the Veteran's case file. When the NPRC informs VA that records were lost in the 1973 fire, or when there is other evidence in the file that a claimant's service records have otherwise been lost or destroyed, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). Additionally, VA's duty to assist requires it to provide a medical examination or obtain a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but "(A) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) establishes that the Veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §3.309, § 3.313, § 3.316, and § 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service connected disability." 38 C.F.R. § 3.159(c)(4)(i) (2016); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 3.159(c)(4)(i) does not conflict with § 5103A(d) and evidence of record "establishing that the Veteran suffered an event, injury, or disease in service," is required to trigger VA's duties pursuant to § 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligations under § 5103A to provide a Veteran with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some causal connection between his disability and his military service"). The Board finds that while the statements by the Veteran are believable; they lack the necessary education, training, and experience to offer a medical diagnosis or to provide an etiology opinion on these conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board notes that the Veteran has not been afforded a VA examination to assess his right wrist or his bilateral lower extremities. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, as per Russo, the Board has a heightened duty to assist the Veteran in developing his claim. In the present case, the Board finds that medical examinations and etiology opinion of the Veteran's right wrist and bilateral extremities are needed to adequately assess the Veteran's symptoms associated with his right wrist and bilateral extremities, which he reports have been present since service. Therefore, a remand for a medical examination is needed so the Board may have the necessary medical evidence to adjudicate the Veteran's claim. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran and offer him an opportunity to identify or submit any evidence of a right wrist or bilateral foot disability since his service discharge. 2. Schedule the Veteran for a VA examination of his right wrist. The examiner should be familiar with the orthopedic and neurological principles involved with wrist fractures and their residual symptoms. The claims folder should be forwarded to the examiner for review. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner is advised that the Veteran's claims file was burned in a fire at the NPRC in 1973. Therefore, particular attention should be paid to the Veteran's history of injury and treatment. The examiner should provide a report that describes the nature and etiology of the Veteran's right wrist condition. The examiner should opine whether it is at least as likely as not (i.e. a 50% probability or better) that the Veteran's current right wrist condition is etiologically related to service. If such an opinion is not possible without resorting to speculation, the examiner should explain why. 3. Schedule the Veteran for a VA examination of his bilateral lower extremities. The examiner should be familiar with the orthopedic and neurological principles involved with extreme cold exposure (i.e., frostbite) and its residual symptoms. The claims folder should be forwarded to the examiner for review. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted at this time, and included in the examination report. The examiner is advised that the Veteran's claims file was burned in a fire at the NPRC in 1973. Therefore, particular attention should be paid to the Veteran's history of injury and treatment. The examiner should provide a report that describes the nature and etiology of the Veteran's bilateral lower extremity condition. The examiner should opine whether it is at least as likely as not (i.e. a 50% probability or better) that the Veteran's current bilateral foot disability is etiologically related to service. If such an opinion is not possible without resorting to speculation, the examiner should explain why. 4. Then, readjudicate the Veteran's claims of entitlement to service connection for a right wrist disability and a bilateral foot disability. 5. If any benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and provide a reasonable opportunity to respond. The appeal should then be returned to the Board for further appellate review if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).